Common Mistakes and Cautionary Tales
Updated: Oct 6, 2022
There are countless ways people can mess up an estate plan. Life doesn’t go as scripted, so one of the most important points we make to clients is to always have a back up plan. Beware of these common mistakes.
Mistake #1: Assuming nothing bad is going to happen.
Good estate planning manages the “what if’s” in life and works to mitigate the risks that can arise from the lack of planning or poor planning. Poor estate planning focuses only on what happens when you die, which is the bare minimum. Good estate planning ensures that you and your assets are protected. What happens if you get sick or become incapacitated? What happens to your business or your home? Those issues, when left unaddressed, can cause real pain for you and your loved ones during your lifetime.
Mistake #2: Thinking your estate isn’t large enough to worry about or to pay a lawyer for planning.
Anyone who has something or someone to protect needs an estate plan. It’s true that larger estates may involve more complicated planning, but even modest estates deserve careful consideration. Also, planning needs are not always about assets. Sometimes estate planning is about the needs of the people in our life. Blended families most assuredly need proper planning to avoid conflict or unnecessary difficultly.
Mistake #3: Believing that Power of Attorney paperwork isn’t needed until someone is sick or has lost capacity.
If you are over the age of 18, you need to legally assign someone to speak for you should you get hit by the proverbial bus. Emergencies aren’t planned. Marriage doesn’t resolve this need. There have been many occasions a prospective client has come to us for assistance because his or her spouse has had a debilitating stroke or some other sudden onset of disability. Consequently, the spouse cannot access bank accounts or 401K information because the accounts are in the name of the incapacitated spouse. Without legal authority by means of power of attorney documents, no one can pay your bills or act on your behalf in any way, putting your future in the hands of a court, instead of someone you know and trust.
Mistake #4: Presuming that Estate Planning is a once and done event.
Estate plans are living, breathing documents and need to change as life circumstances changes. Any time there is a death, marriage, or move to another state, an estate plan should change. Any time there is a change in the health of a spouse, the plan should change. Outdated plans are not helpful and defeat the purpose of having a plan. Plans also can become outdated and irrelevant because of changes in the law.
Mistake #5: Not seeking advice from a seasoned professional.
Everyone knows the adage “you get what you pay for.” It is especially true in in the law. First, everyone’s situation is unique. What worked for your neighbor likely will not work for you. Second, many people have heard of a trust, but few could explain the differences among the different types of trusts and the best application for each type. We had a client who had hired an attorney to create a trust for him years ago to protect his farm from future creditors such as a nursing home. He kept assuring us that everything was protected because it had been placed in a trust. After we reviewed the document, the client was disappointed to learn the trust his farm had been placed in was a revocable trust and did not provide any type of asset protection. Third, Google is a wonderful tool, but it is an awful attorney. Multiple prospective clients have gotten themselves in a pickle consulting Google to save money instead of initially seeking the advice of a professional. They come to us after the fact with a mess and a much more costly problem than if they had first turned to someone experienced in elder law.
If you had a heart issue, you wouldn’t consult a urologist, nor would you ask your neighbor how you should treat your clogged arteries. You would go to a cardiologist, a specialist. It’s the same with legal issues, you need to see a specialist. Life is complicated and you and your family deserve the best.
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